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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, November 10, 2014

Gun search gone awry gets family a new trial

This case is a real eye-opener. The police entered someone's property looking for a gun that did not exist and shot and killed the family dog in front of a 12 year-old girl. The case went to trial and the police won. The family gets a new trial.

The case is Harris v. O'Hare, decided on October 30. The City of Hartford Police made it a priority to rid the neighborhood of guns. When they arrested a heroin user who had violated his parole for possessing drugs, the user (who was unknown to the police) told them they could find a gun in an abandoned car at a specific address. Of course, this tip would gain the heroin guy some leniency in his parole violation proceeding. But the police though the tip was reliable because the arrestee was unlikely to lie and make his bad situation worse by misleading the police. So the police entered the property described by this informer and found no drugs. But when the growling family dog was running around in this fenced-in property, the officer shot and killed it in front of a girl who loved the dog. At trial, the jury ruled for the police in the belief that exigent circumstances allowed them to enter the property without a warrant.

The Court of Appeals (Pooler, Parker and Wesley) issue two holdings here. First, the police had probable cause to believe there might be guns on the property. The informant belonged to a violent street gang in this dangerous neighborhood, so the police deemed him reliable on where they could find guns. The informant was also in a position of self-preservation such that "it would be detrimental for him to provide us false information." And, this is how the police often found illegal guns. It may sound counterintuitive, but this violent heroin user was more likely to tell the truth under the circumstances, the Court says.

But the Court also says the police had no right to enter the property without a warrant. The Second Circuit says the jury had no basis to find that exigent circumstances justified the warrantless entry. Exigent circumstances are a narrow exception to the warrant requirement. Here are some general guidelines:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause . . . to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.

While the officers argued that Hartford is a violent, gun--ridden city, that justification is not sufficiently specific to this particular case to allow the police to enter the property without a warrant.The Court reasons:

Though genuinely held, the officers’ concerns about getting illegal guns off of the streets of Hartford are not pertinent to an exigency analysis. This is because testimony about how fast “guns move” in Hartford, or about the violent gangs in that part of the city, are not specific facts or evidence particular to this case. Rather, they are generalized facts about the city and about the nature of gun trafficking. Such general knowledge, without more, cannot support a finding of exigency. The exigency inquiry “turns on the district court’s examination of the totality of circumstances confronting law enforcement agents in the particular case.”